What lies ahead for employers in 2013 7 march 2013
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What lies ahead for employers in 2013 ? 7 March 2013 PowerPoint PPT Presentation

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What lies ahead for employers in 2013 ? 7 March 2013. Speaker. Paul Ball Head of Employment Tel: 0113 246 2312 Mob: 07753 323772 Email: [email protected] Programme . Settlement discussions and agreements Early conciliation

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What lies ahead for employers in 2013 ? 7 March 2013

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What lies ahead for employers in 2013?7 March 2013


Paul Ball

Head of Employment

Tel: 0113 246 2312

Mob: 07753 323772

Email: [email protected]


  • Settlement discussions and agreements

  • Early conciliation

  • Employment Tribunal fees and limit on compensation in unfair dismissal cases

  • Reform of ET rules

  • TUPE reform

  • Collective consultation changes

  • Management of long-term sickness

  • Questions


  • Enterprise and Regulatory Reform Bill currently going through Parliament

  • Government desire to cut red tape on businesses and aim to increase efficiency and competitiveness

  • Aim to reduce burden on ETs

  • Various recent consultation papers/responses to consultations issued

Settlement Agreements

  • BIS Consultation: “Ending the employment relationship” (September 2012)

    • “Protected discussions”

    • Limit on unfair dismissal awards

  • Government response published January 2013

  • Likely implementation date, Summer 2013

Settlement Agreements (continued)

  • Currently:

  • Risks associated with having “off the record” chats with employees

  • If the discussion is unsuccessful, will be admissible in subsequent ET claims

  • Any deal reached needs to be confirmed in a “compromise agreement”

  • Proposal:

  • Some protection given to parties who instigate settlement discussions.

  • Won’t be admissible in unfair dismissal claims

  • NB: “Improper behaviour” caveat

  • “Compromise agreements” to become “Settlement agreements”

Settlement Agreements (continued)

  • Draft ACAS Code of Practice and Guidance issued

  • Template letter to instigate settlement discussions

  • Can be instigated by an employer or employee

  • Not compulsory, i.e. a party can decline to enter settlement discussions

  • Model settlement agreement

Settlement Agreements (continued)

  • Risks

    • “Improper behaviour” caveat

    • Conduct during settlement discussions and possible breach of trust and confidence

    • If discussions fail, employer must then follow a fair process in taking action

    • Will only be ‘protected’ in relation to future unfair dismissal claims

    • Effect on other ET claims, e.g. discrimination or whistleblowing?

Early conciliation

  • BIS consultation, January 2013

  • Consultation closed 15 February 2013

  • New role for ACAS

  • Aim is to try and reduce number of disputes going to ET claims

Early conciliation - how will it work?

  • All prospective claimants must submit an “EC form” to ACAS before can issue the ET claim

  • Limited exceptions, e.g. multiple claimants, claims with a short time limit, claims where prospective respondent has already asked ACAS to conciliate

  • Limited information to be supplied to ACAS on the EC form

  • ET time limits will stop for 4 – 6 weeks

Early conciliation (continued)

  • Two stage ACAS contact with claimant:

    • First stage – telephone contact by an ECSO by close of business day after receipt of EC form

    • Second stage – contact by ACAS conciliator within 2 working days of receipt of the EC form

  • ACAS contact with the respondent

  • No obligation to conciliate

  • Where parties agree to conciliation, ACAS has one calendar month to try and reach settlement

  • Possible extension of up to 2 weeks, where is a reasonable prospect of settlement being achieved

Early conciliation (continued)

  • At end of conciliation period, ACAS will issue an “EC Certificate”

  • ET time limit will recommence from this point

  • An EC Certificate number will be required before the ET will accept any subsequent claim

  • Possible time limit issues if EC Certificate issued early?

Cap on Unfair Dismissal Compensation

  • Proposal:

  • Subject to the maximum limit, a cap of 12 months’ pay on compensatory award on unfair dismissal cases

  • Currently:

  • Maximum compensation award £74,200

  • Median award significantly less than this*

  • Most awards/settlements are lower than claimant’s initial expectations *

* The SETA 2008 Survey

Cap on Unfair Dismissal Compensation (continued)

  • Government believes this will lead to:

    • earlier resolution of disputes

    • more certainty about likely costs of unfair dismissal claims

  • But:

    • risk of greater number of uncapped claims, e.g. discrimination?

    • risks of possible injunction action to prevent dismissal where a claim is likely to be worth more than/close to the maximum award?

Fees in Employment Tribunal Claims

  • Summer 2013

  • Aim is to encourage settlement, mediation and arbitration

  • Two stage fee charging structure

Fees in Employment Tribunal Claims (continued)

  • Remissions available for those unable to pay

  • Refunds available in limited circumstances only

Fees in Employment Tribunal Claims (continued)

  • Multiple claims – the highest level fee is to be paid, once only

  • Multiple claimants – Depending on the number of claimants a multiplier of 2, 4 or 6 will apply to all fees

Fees in Employment Tribunal Claims (continued)

Various application specific fees

* Payable by the employer

Fees in Employment Tribunal Claims (continued)

Employment Appeal Tribunal fees

New Employment Tribunal Rules of Procedure

  • Government intention to bring new ET rules in force, April 2013

  • Objective is to simplify the existing ET rules

New Employment Tribunal Rules of Procedure

New Employment Tribunal Rules of Procedure (continued)

  • New ET1 and ET3 forms – NB. Minor changes only

  • Prescribed information must be supplied on the ET1 otherwise claim will be rejected

  • ET3 must be filed by 5pm on the relevant deadline

  • New procedure for seeking extension of time to file ET3

  • Sift stage to identify weak claims/responses:

    • Reasonable prospects of success

    • Any jurisdictional issues to be determined

    • Case management directions

    • Could lead to automatic strike-out of a claim/response

New Employment Tribunal Rules of Procedure (continued)

  • CMDs and PHRs to be replaced with “preliminary hearings”

  • Wide ranging issues can be determined at a preliminary hearing

New Employment Tribunal Rules of Procedure (continued)

  • Full hearings – ET judges to have wider discretion on conduct of these, e.g.:

    • Limiting duration of witness evidence or making submissions

    • May exclude witnesses from the hearing until they give evidence

  • Costs awards - £20,000 limit removed

  • Written reasons for decisions on any disputed issue to be given as standard (can be brief)

TUPE Reform

  • TUPE 2006 introduced “service provision changes” as a relevant transfer

  • First generation outsourcing, re-tendering or outsourced services reverting in-house

TUPE Reform

  • Organised grouping of employees/resources carrying out an activity for a client

  • Whose principal purpose is the carrying out of that activity

  • Who are assigned to the grouping of resources or employees that is to transfer

  • Other than one-off/short-term duration or provision of goods only

TUPE Reform (continued)

  • BIS consultation, January 2013. Closes 11 April 2013

  • Government proposes to repeal service provision changes as a relevant transfer

  • Repeal of “Employee Liability Information” provisions – to be replaced with guidelines and model terms for contracts

  • Proposed change to existing provision which restricts changes to terms and conditions of employment by a transferee (NB. Won’t extend to harmonisation of terms and conditions)

TUPE Reform (continued)

  • Proposal to limit duration of transferred collectively-agreed terms to 12 months post-transfer

  • Limitation on an employee’s ability to resign because of changes to working conditions – must be in breach of contract

  • Post-transfer change of workplace redundancy will be an ETO reason

  • Transferor to be able to rely on transferee’s reasons for dismissal

TUPE Reform (continued)

  • Transferee to be able to consult with representatives of employees pre-transfer about post-transfer measures

  • Micro-businesses will be able to consult directly with employees rather than representatives

Collective Redundancy Consultation

  • BIS Consultation, June 2012

  • Government response, December 2012

  • Currently:

Collective Redundancy Consultation (continued)

  • From 6 April 2013

  • Non-statutory guidance on definition of “establishment”

  • Employees on fixed-term contracts close to expiry date to be excluded from the numbers

  • Protected award will remain up to 90 days pay per employee

Management of long-term sick employees

  • 300,000 people fall out of employment into the welfare system because of health issues each year

  • £13 billion State costs on health related benefits

  • £9 billion employer costs on sick pay and associated costs

  • 2011 review led by Dame Carol Black “Health at Work – Independent Review of Sickness Absence”

  • January 2013 – Government response

Review of long-term sickness absence

  • Government accepts most recommendations made in the Health at Work report

  • Health and work assessment and advisory service to be set up

  • Revised fit note guidance for GPs

  • Reforms to the benefit system (not covered today)

Review of long-term sickness absence (continued)

Health & Work Assessment and Advisory Service (HWAAS)

  • State-funded

  • GP referral to HWAAS after 4 weeks’ sickness absence unless clear reasons for not doing so (e.g. employee is about to return to work)

  • Employer can refer employee to HWAAS directly

  • Information and advice from HWAAS to be shared with employers

Review of long-term sickness absence (continued)


  • Initial telephone assessment by OH professional

  • Face-to-face assessment if needed

  • Report prepared and shared with the employee, employer and GP, outlining how best to secure a return to work

  • Continuing support where needed

  • Further action/remedial steps to be arranged where relevant

Review of long-term sickness absence (continued)

  • Joint responsibility of employer, employee and GP to take forward recommendations

  • On-going provision of telephone and on-line advice for employees and employers at any time

  • Will link in with “Universal Jobmatch” service (hosted by Monster Worldwide) where employee would benefit from finding alternative employment

  • Employers will be encouraged to implement HWAAS recommendations via Access to Work scheme

Review of long-term sickness absence (continued)

  • Government will review whether to provide tax relief on cost to employers of treatment/rehabilitation in due course

  • Existing tax relief on Employee Assistance Programmes retained (for now at least)

  • SSP record-keeping requirements to be relaxed

  • GPs and health care professionals to be supported to develop knowledge to help them provide useful advice for employers and employees

  • Revised fit note guidance to be issued

Closing comments

  • Only a proportion of the employment law changes we are likely to have to deal with in the coming months

  • What do you think the likely impact these will have on how you manage people/people issues?

Any Questions?

Useful links

  • www.gov.uk/government/consultations/ending-the-employment-relationship

  • www.acas.org.uk/media/pdf/2/r/Consultation_draft_COP_FW.pdf

  • www.gov.uk/government/consultations/early-conciliation-consultation-on-proposals-for-implementation

  • www.gov.uk/government/consultations/transfer-of-undertakings-protection-of-employment-regulations-tupe-2006-consultation-on-proposed-changes

  • www.gov.uk/government/consultations/collective-redundancies-consultation-on-changes-to-the-rules

  • www.dwp.gov.uk/policy/welfare-reform/sickness-absence-review/

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